IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         E.F. and K.F. are the parents of a 14-year-old child. The parties share parenting time, with E.F. having the majority of it.

[2]         The issues are the following:

[3]         The parties began to live together in 2009. Their child was born in 2010. They married in 2011 and separated on February 7, 2019.

[4]         On February 12, 2019, E.F. filed an Application to Obtain an Order, to seek an order regarding guardianship and parenting arrangements.

[5]         On February 13, 2019, K.F. filed a Reply and Counterclaim. The Counterclaim included an application for child support.

[6]         E.F. has never applied for an order that K.F. pay him child support.

[7]         On August 14, 2019, the parties agreed at a Family Case Conference before Judge Janzen to a parenting time order as follows:

[8]         At a subsequent Family Case Conference before Judge Janzen on January 2, 2020, the parties agreed to further parenting time, which I summarize as follows:

[9]         K.F. provided me with submissions in support of a retroactive support order.

[10]      K.F. filed her application for child support on February 13, 2019. At trial, she sought an order child support commencing on August 1, 2019, the month that the first parenting time order was made. A claim for retroactive support seeks support payable starting on a date before the filing of the application. That is not the case here. As such, I need not consider the factors referred to in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37, which is the leading case on retroactive support.

[11]      The starting presumption is that the parent with less parenting time pays child support to the parent with more parenting time, with the amount set in accordance with the Child Support Guidelines s. 3.

[12]      Section 9 of the Child Support Guidelines states:

[13]      Even if a parent has at least 40% of the parenting time, there is no automatic deviation from the Guideline amount. There is only a deviation from the method of calculation, which now moves from s. 3 of the Guidelines to s. 9: Contino v. Leonelli-Contino, 2005 SCC 63 at para. 30.

[14]      The first step then is to determine if a parent has at least 40% of the parenting time.

[15]      I refer to my decision in C.A.H. v. J.J., 2023 BCPC 9, where I stated as follows:

[16]      I turn now to determine whether K.F. has at least 40% of the parenting time.

[17]      K.F. has provided me with two different parenting time calculations. Based on total hours, K.F. calculates that she has 43.54% of the parenting time. Based on total days, she calculates that she has 51.23% of the parenting time.

[18]      E.F. has also supplied a calculation based on days and hours. His calculation shows that based on total hours, K.F. has 38.5% of the parenting time, and based on total days she has 35.9 % of the parenting time.

[19]      E.F.’s calculation is based on parenting time starting September 2019, the month after the first parenting time order. This approach results in a reduced calculation of K.F.’s current parenting time because it considers parenting time from before the January 2, 2020 order. This is contrary to s. 9 of the Child Support Guidelines which refers to “40% of parenting time with a child over the course of a year…” E.F.’s calculation is for parenting time since the time of separation and not over a year.

[20]      A proper assessment of K.F.’s percentage of parenting time must be based on the current parenting time schedule, as set by the orders made on August 14, 2019 and January 2, 2020.

[21]      I will carry out my own calculations. If I conclude that K.F. has at least 40% of the parenting time, then I will set child support payable based on s. 9 of the Guidelines. If K.F. does not have at least 40% of the parenting time, then she has no entitlement to child support.

[22]      The parenting time orders set out a schedule with specified pick-up times. Given this, I will calculate the parenting time based on the number of hours and not the days as this will be more precise.

[23]      There are 24 hours a day and 365 days a year, a total of 8,760 hours. I will ignore leap years in my calculation.

[24]      I will assume K.F.’s parenting time starts on January 1, being Week 1.

[25]      During Week 1, K.F.’s parenting time is to start Tuesday after school. I will assume this commences at 7 p.m.

[26]      During Week 1, K.F. is entitled to 52 hours of parenting time, calculated as follows:

[27]      During Week 2, K.F. is entitled to 72 hours of parenting time, calculated as follows:

[28]      Over the two weeks, K.F. is entitled to 124 hours of parenting time.

[29]      K.F. has the child on Mother’s Day from 9:00 am to 7:30 pm, a total of 10.5 hours. As Mother’s Day is on a Sunday, which is not a regular parenting time day for K.F., this is all additional time.

[30]      K.F. has parenting time on her birthday on [omitted for publication] from 3:00 pm to 7:30 pm, a total of 4.5 hours. Depending on the year, [omitted for publication] may fall on any one of seven days of the week. For instance, [omitted for publication], 2024, falls on a Monday of Week 1 and K.F. would be credited for this time. On the other hand, [omitted for publication], 2026, falls on a Wednesday and K.F. may or may not get credit for this time depending on whether [omitted for publication], 2026, falls on Week 1 or Week 2.

[31]      This demonstrates why calculating the percentage of parenting time is not a precise science.

[32]      In even-numbered years, K.F. has parenting time as follows:

[33]      On odd-numbered years, K.F. has parenting time from December 24 at 3:00 pm to December 25 at 3:00 pm (24 hours). December 24 and 25 could be on any day of the week depending on the year, so the available credit of 24 hours will vary and, in some years, may not be available or may be less than 24 hours.

[34]      K.F. is also entitled to four weeks of vacation time with the child, which is 672 hours.

[35]      I estimate the parenting time of K.F. as follows:

[36]      The certain hours are 672 (4 weeks holidays), 2,976 (regular parenting time), 10.5 (Mother’s Day), 4.5 (Easter Sunday), and a minimum of 4 hours (Thanksgiving Monday). This totals 3,667 hours, which is 41.8% of the possible 8,760 hours of parenting time each year.

[37]      As K.F. is entitled to further parenting time depending on when certain dates, such as Christmas Day, fall on certain days of the week, I am satisfied that K.F. has at least 40% of the parenting time.

[38]      Before I proceed to the second step of the s. 9 analysis, I must determine the income of each parent, which I will use to calculate the child support obligation.

[39]      Before the January 2, 2020 order, K.F. was entitled only to parenting time of 2,976 hours if calculated over a year. That is less than 40% of the parenting time. K.F. would not have been eligible to receive support under s. 9 of the Child Support Guidelines before January 2, 2020. As such, I will review the parties’ income only from 2020 to date.

[40]      In 2020, K.F.’s income was $44,329 based on line 15000 of her tax return, which is a Child Support Guideline amount of $417 a month.

[41]      In 2021, K.F.’s income was $37,587 based on line 15000 of her tax return, which is a Child Support Guideline amount of $354 a month.

[42]      In 2022, K.F.’s income was $31,334 based on line 15000 of her tax return, which is a Child Support Guideline amount of $292 a month.

[43]      In 2023, K.F.’s income was $45,027 based on line 15000 of her tax return, which is a Child Support Guideline amount of $423 a month.

[44]      Based on K.F.’s most recent pay stub, her projected income for 2024 is $48,802.65, which is a Child Support Guideline amount of $459 a month.

[45]      E.F.’s income must be determined with reference to Child Support Guideline Schedule III, which calls for the deduction of union dues from line 15000 income to arrive at a Child Support Guideline income.

[46]      In 2020, E.F.’s line 15000 income was $78,642, less union dues of $1,032, to arrive at a Child Support Guideline income of $77,610. This results in a child support amount of $742 a month.

[47]      In 2021, E.F.’s line 15000 income was $84,578, less union dues of $1,056, to arrive at a Child Support Guideline income of $83,522. This results in a child support amount of $798 a month.

[48]      In 2022, E.F.’s line 15000 income was $90,734, less union dues of $900, to arrive at a Child Support Guideline income of $89,834. This results in a child support amount of $859 a month.

[49]      In 2023, E.F.’s line 15000 income was $130,341, less union dues of $1,101, to arrive at a Child Support Guideline income of $129,240. This results in a child support amount of $1,189 a month.

[50]      E.F. is paid every two weeks. He has provided a pay stub for Pay Period 8 of 2024 that shows a year-to-date gross income of $41,352. This averages $5,169 every two weeks. The union dues for the pay period were $288, and after that is deducted, E.F.’s average income per pay period is $4,881. Over 26 pay periods, or one year, this totals $126,906, which results in child support payable of $1,170 a month.

[51]      I now move to the second step of the s. 9 analysis to determine what amount of child support should be payable and by whom.

[52]      Under s. 9(a), the starting point for determining the amount of child support payable in a shared custody arrangement is the set off between the amounts of support each parent would be required to pay under the Child Support Guidelines: Contino at paras. 41 and 49.

[53]      I will set out those amounts in the following table:

[54]      The next step is described in para. 41 of Contino:

[55]      This requires me to consider s. 9(b) and (c) of the Child Support Guidelines, which are as follows:

[56]      I must examine the financial realities of each parent. As stated in para. 51 of Contino, “the child should not suffer a noticeable decline in his or her standard of living” when moving from one household to the other.

[57]      I did not hear any evidence from either party of the increased costs of the shared parenting time arrangements. There may be no increased costs, but absent evidence I cannot speculate either way.

[58]      K.F. has a modest income while E.F.’s income is at least 2.5 times greater.

[59]      K.F.’s Financial Statement, filed on March 20, 2024, shows a gross monthly income of $4,066.88 and monthly expenses of $3,243. She testified to living in rental accommodations with her mother. Her Financial Statement fails to provide me with any income information for her mother. K.F. testified to living pay cheque to pay cheque with no money for extras.

[60]      E.F.’s Financial Statement, filed on March 20, 2024, lists a gross monthly income of $6,392 and monthly expenses of $4,718. He owes a mortgage debt but has not disclosed the value of his property. E.F. lives with his girlfriend who works full time but he did not disclose her income.

[61]      E.F. confirmed on cross-examination that he and his girlfriend were able to take a vacation last year and are hoping to take another one this year.

[62]      The evidence I heard about the conditions, means, needs and other circumstances of each spouse was unfortunately limited. However, it was still evident that E.F. is in a better financial position compared to K.F. and more than likely has a better standard of living.

[63]      Given the parties’ respective financial situations, I am satisfied that it is appropriate to depart from the presumption that K.F. should pay child support as required by s. 3 of the Child Support Guidelines. Furthermore, based on the limited evidence about the s. 9(b) and (c) considerations, I see no basis to depart from the starting point established by s. 9(a), that being the set-off amount of child support.

[64]      The form of the order will set out each party’s respective support obligation to the other parent. This is to preserve any possible claim for tax credits as referred to in such cases as Harder v. The Queen, 2016 TCC 197 (Can LII), B.N.M. v. P.J.M., 2017 SKQB 331 at para. 190, and De Matos v. De Matos, 2017 ONSC 5063 at para. 9.

[65]      K.F.’s application for child support was filed on February 13, 2019, but was not heard until April 5, 2024. The parties adjourned prior trial dates by agreement.

[66]      The Child Support Guidelines and the Family Law Act do not provide any direction about when a child support order should commence. In practice, the court will typically start the requirement to pay child support the month after the application for support was filed, if there was no request for retroactive support.

[67]      Family Law Act s. 147(1) states that each parent has a duty to provide support to the child.

[68]      Support is the right of the child: Tsuji v. Tsuji, 2024 BCSC 370 at para. 1

[69]      The application for child support did not become viable until K.F. received at least 40% of the parenting time, which was in January 2020. A court dealing with an application for support at that time would likely have required payment of support starting February 1, 2020.

[70]      I see no reason to depart from the usual requirement that E.F. should have started to pay child support as of February 1, 2020, especially given that E.F. was put on notice about the child support claim in February 2019, when the application was filed.

[71]      Using the set-off amounts I listed above, I calculate the unpaid support as follows:

[72]      This totals $28,454 in unpaid support as of May 1, 2024.

[73]      I am mindful that the high arrears are partly due to K.F.’s delay in pursuing an order for child support. I considered whether this was a basis to defer the obligation to pay child support to a later date, but the support is the right of the child, and he should not be prejudiced by the delay.

[74]      Based on a set-off of each party’s child support obligation, E.F. is required to pay a net of $711 a month starting June 1, 2024, and continuing on the 1^st day of each month thereafter.

[75]      K.F. submits that E.F. should pay the arrears at the rate of $200 a month. That would mean a monthly obligation of $911 a month for ongoing support and payment of arrears.

[76]      In determining the appropriate payment schedule for the arrears, I must look at E.F.’s ability to pay.

[77]      According to E.F.’s Financial Statement, his gross monthly income exceeds by $968.54 his monthly expenses plus the net child support obligation of $711 a month. I am mindful that this is based on gross income and E.F. of course only receives net income after statutory deductions. Given this, I will set the amount payable toward the arrears at $100 a month starting on June 1, 2024, and continuing each month thereafter until the arrears are paid in full.

[78]      K.F. sought an order for payment of special expenses. I reviewed the Reply and Counterclaim filed by K.F. on February 13, 2019. There was no claim for special or extraordinary expenses. As such, I decline to make any such order.

[79]      My order is as follows:

[80]      I direct Ms. Middlemass to draft the order for filing with the Registry. As E.F. is not represented, there is no requirement for his signature on the draft order. I remind counsel of Provincial Court Family Rule 168 and the requirement to submit the draft order within 14 days.